Flint Engineering Commerical Project Terms and Conditions

Section 1 - General

1.1       This Agreement

1.1.1     These Terms and Conditions, along with the signed Agreement, and Exhibit A - Summary of Services, form the Agreement as if they were part of one and the same document.

1.1.2     The Agreement and Exhibit A may limit or negate the applicability of these Terms and Conditions. Such limitation shall take precedence over provisions of this Exhibit.

1.1.3     If a Prime Design Professional is also engaged by the Client to participate in this project, then that Prime Design Professional shall be responsible for determining and interpreting the needs of the Client, and for coordinating the work of the SE and other members of the design team.

1.2       General Obligations of the Structural Engineer of Record and the Client

1.2.1     The SE shall perform those professional structural engineering services as specified in Exhibit A and detailed in these Terms and Conditions. Services performed under this agreement will be performed in a manner consistent with that degree of skill and care ordinarily exercised by members of the same profession currently practicing under similar circumstances. No warranties, express or implied, are made in connection with services performed under this Agreement. Nothing in this Agreement shall be construed to establish a fiduciary relationship between the parties.

1.2.2     Upon written request, the Client shall verify and provide reasonable evidence, in writing, that the contemplated project will be financed adequately, including provisions for contingencies, to accomplish the stated and desired goals and commitments.

1.2.3     The Client shall provide all criteria and full information with regard to his or her requirements for the Project. This shall include, but not be limited to, review and approval of design issues in the schematic design phase, design development phase, and contract documents phase. These approvals shall include a written authorization to proceed to the next phase.

1.2.4     The SE shall recommend that the Client shall provide those geotechnical investigations, property surveys, reports and other data necessary for performance of the SE's services.

1.2.5     The Client and SE shall each designate, in writing, a person to act with authority on behalf of each with respect to all aspects of the Project.

1.2.6     The SE shall submit or coordinate with the Prime Design Professional to submit a schedule for the performance of the SE's services to the Client. This schedule shall include requirements for information to be furnished by the Client.

1.2.7     The SE shall be entitled to rely on the accuracy and completeness of all information supplied by the Client.

1.2.8     The Client shall coordinate, or arrange for the Prime Design Professional to coordinate, the services of the design team to minimize conflicts or misunderstandings.

1.3       Definitions

1.3.1     Construction Cost is the amount paid by Client for construction of the building(s) and everything within five feet of the building perimeter(s), excluding furniture, fixtures, and equipment.

1.3.2     Fast Track Projects are projects in which any portion of the contract documents are released for pricing/bid/fabrication, or are submitted for building permit, prior to such issuance of full design team documents.

1.3.3     Multiple Bid Packages are bid documents which are submitted for phased construction of portions of the project under separate trade contracts.

1.3.4     Non-Structural Elements are elements of a building that are not Primary or Secondary Structural Elements. Items in this category could include curtain walls and cladding, non-bearing partitions, stair railings, etc.

1.3.5     Pre-Engineered Structural Elements are structural elements which are specified by the SER but may be designed by a Specialty Engineer. These elements are normally fabricated off-site, may require specialized equipment not usually available at the job site or may require a proprietary process. The SE shall specify the design criteria, including the incorporation of the Pre-Engineered Structural Elements into the structure. Examples of Pre-Engineered Structural Elements may include but are not limited to:

a.  Open web steel joists and joist girders.

b.  Wood trusses.

c.   Combination wood and metal, and plywood joists.

d.  Precast concrete elements.

e.  Prefabricated wood or metal buildings.

f.   Tilt-up concrete panel reinforcement and hardware required for lifting to position.

1.1.1.Primary Structural System is the completed combination of elements which serve to support the building's self-weight, the applicable live load which is based upon the occupancy and use of the spaces, and the environmental loads such as wind, seismic, and thermal. Curtain wall members, non-load bearing walls and exterior facade are examples of items which are not part of the Primary Structural System.

1.1.2.Prime Design Professional is the leader of the design team charged with the design of a facility, either an architect or an engineer. The Prime Design Professional is responsible for determining and interpreting the needs of the Client and for coordinating the work of the other members of the design team.

1.1.3.Reimbursable Expenses are expenses incurred directly or indirectly in connection with the project such as, but not limited to, transportation, meals or lodging for travel, long distance telephone calls and facsimile transmissions, overnight deliveries, courier services, professional service sales taxes, the cost of reproductions beyond those normally required for coordination and information purposes, and the cost of outside professional services.

1.1.4.Secondary Structural Elements are elements that are structurally significant for the function they serve but do not contribute to the strength or stability of the Primary Structure. Examples may include but are not limited to: support beams above the primary roof structure which carry a chiller, stairs, elevator support rails and beams, retaining walls independent of the primary building, and flagpole or light pole foundations.

1.1.5.Special Inspection is inspection performed by a qualified person, approved by the building official, for the types of work requiring inspection per the governing codes and contract documents.

1.1.6.Specialty Structural Engineer is a licensed professional engineer, not the Structural Engineer of Record, who is legally responsible for sealing plans and designs for Pre-Engineered Structural Elements which are necessary for the structure to be completed. The Specialty Structural Engineer is usually retained by a supplier or subcontractor who is responsible for the design, fabrication and (sometimes) installation of engineered elements or by the General Contractor or Subcontractor(s) responsible for construction related services.

1.1.7.Structural Engineer of Record (SE) is the Structural Engineer who is legally eligible to seal the Structural Documents for a Building Project. This seal acknowledges that he or she has performed or supervised the analysis, design, and document preparation for the building structure and has knowledge of the requirements for the load carrying structural system. The SE is responsible for the design of the Primary Structural System.

Section 2 - Basic Services

2.1       General – The Basic Services of the SE shall include the following:

2.1.1     Analysis, design and preparation of drawings and specifications for the Primary Structural System, as designated in Exhibit A.

2.1.2     Provision of structural criteria for Pre-Engineered Structural Elements, if required by Exhibit A. This may include the type of element, position within the structure, connection to the Primary Structural System, the loading and deflection criteria, and the required shop drawing and calculation submittal requirements.

2.1.3     Review of the effect of Secondary and Non-Structural Elements on the Primary Structural System and design the Primary Structural System to accept and support such items. The Contract Documents shall provide information regarding the supporting capability and physical attachment limitations of the Primary Structural System. Where Exhibit A requires secondary or non-structural elements to be reviewed by the SE, the SE shall be entitled to rely on the accuracy and completeness of information furnished by the Client and/or Prime Design Professional.

2.1.4     Review of specified submittals pertaining to items designed by the SE after these submittals have been approved by others as required by the Contract Documents. Review of submittals shall be for general conformance with the information given and design concept expressed in the Contract Documents.

2.1.5     Review of submittals pertaining to Pre-Engineered Structural Elements specified by the SE and designed by Specialty Engineers after these submittals have been approved by others as required by the Contract Documents.   Determine whether submittals bear the signature and professional seal of the Specialty Engineer responsible for the design as required by the Contract Documents. Review of Pre-Engineered Structural Elements shall be for type, position, and connection to other elements within the Primary Structural System, and for criteria and loads used for their design. 

2.1.6     Site visits at intervals appropriate to the stage of construction, as defined by the Agreement, to observe and become generally familiar with the quality and the progress of the construction work relative to the Primary Structural System and preparation of construction observation reports.

Section 3 - Additional Services

3.1       General

3.1.1     Services beyond those outlined under Basic Services may be requested. These services shall be provided as Additional Services by the SE under terms mutually agreed upon by the Client and the SE.

3.1.2      Special Services are services which may or may not be foreseen at the beginning of design, and which are not normally included as Basic Services. Examples include, but are not limited to:

a.  Services related to Non-Structural Elements and their attachments, including:

i.        Exterior cladding systems.

ii.       Interior architectural systems.

iii.      Window washing systems and tie downs.

iv.      Antennas and flagpoles.

v.       Mechanical, electrical and plumbing equipment, storage tanks, cooling towers and underground vaults.

vi.      Mechanisms and guide systems for elevators, escalators, other conveyor systems and associated operating equipment.

vii.    Ladders, handrails, railings, grills, screens and signs.

b.  Services related to Secondary Structural Elements and their attachments, including:

i.        Site-work elements not part of the Primary Structural System, such as retaining walls, culverts, bridges, etc.; as well as support for landscape furnishing such as flagpoles, lighting poles, benches, fountains, pools, signs, etc.

ii.       Stairs.

iii.      Tenant-related design services.

iv.      Services related to special seismic analyses such as non-linear “pushover” analysis or spectrum or time-history dynamic analysis.

v.       Services related to special dynamic analyses, such as effects or floor-response analysis for foot-fall or vibratory equipment.                         

vi.      Services related to special wind analyses, such as wind-tunnel tests, etc.

vii.    Services related to “seismic risk” analysis.

viii.   Preparation of demolition documents.

ix.      Field Investigation of existing buildings and structures, including surveys of existing construction.

x.       Studies of various schemes to accommodate special energy requirements.

xi.      Services connected with the preparation of documents for alternate bids or for segregated agreements for phased or Fast Track construction.                   

xii.    Continuous and/or detailed inspections of construction.

xiii.   Design and field observation of shoring and bracing for excavations and buildings or underpinning of adjacent structures.

xiv.   Design and review related to Contractor’s construction related equipment, e.g., cranes, hoists, etc.

xv.    Design of swimming pools.

xvi.   Design for future expansion.

xvii.  Filing application for and obtaining a building permit.

xviii. Preparation of a record set of drawings.

xix.   Preparation of shop or fabrication drawings, such as tilt-up wall panel drawings, reinforcing and structural steel detailing, etc.

xx.    Review and determination of structural fire resistance requirements.

3.1.3     Extra Services are services which arise as a result of unforeseen circumstances during the design or construction process. Examples include, but are not limited to:

a.  Services resulting from changes in scope or magnitude of the project as described and agreed to under the Basic Services Agreement.

b.  Services resulting from changes necessary because of a construction cost over-run which is outside the control of the SE.

c.   Services resulting from revisions which are inconsistent with approvals or instructions previously given by the Client.

d.  Services resulting from revisions due to the enactment or revision of codes, laws, or regulations subsequent to the execution of this Agreement.

e.  Services resulting from Change Orders.

f.   Services resulting from corrections or revisions required because of errors or omissions in construction by the building contractor or in design by consultants other than the SE.

g.  Providing recommendations regarding claims, disputes, or other matters relating to execution or progress of the work.

h.  Services resulting from construction procedures over which the SE has no control.

i.    Services due to extended design or construction time schedules.

j.    Service in connection with any public hearing, arbitration, or legal proceeding with respect to the project, including assisting in preparation for litigation or arbitration as witnesses or consultants.

k.  Services resulting from damage as the result of fire, man-made disasters, or acts of God.

l.    Review and design of alternate or substitute systems.

m. Review of additional shop drawing submittals when occasioned by improper or incomplete submittals.

n.  Attendance at construction progress meetings.

o.  Overtime work required by the Client.

p.  Services required to make changes resulting from value-engineering review or project peer review.

q.  Services rendered for special foundations when the discovery of unexpected soil conditions is made after execution of this Agreement. Examples include, but are not limited to: deep foundations, mat foundations, structural grade slabs, and grade beams.

Section 4 - Fees and Payments

4.1       Fees and Other Compensation

4.1.1     Fees for Basic Services, Additional Services and Compensation for Reimbursable Expenses are set forth in the Agreement.

4.2       Payments on Account

4.2.1     Invoices for the SE's services shall be submitted, at the SE's option, either upon completion of any phase of service or on a monthly basis. Invoices shall be payable when rendered and shall be considered past due if not paid within 30 days after the invoice date.

4.2.2     Retainers, if applicable to this Project, shall be credited to the final invoice.

4.2.3     Any inquiry or question concerning the substance or content of an invoice shall be made to the SE, in writing, within 10 days of receipt of the invoice. A failure to notify the SE within this period shall constitute an acknowledgement that the service has been provided and payment is due.

4.3       Late Payments

4.3.1     A service charge will be charged at the rate of 1.5% (18% true annual rate) per month or the maximum allowable by law on the then outstanding balance of past due accounts. In the event any portion of an account remains unpaid 90 days after billing, the Client shall pay all costs of collection, including reasonable attorney's fees. Payments on account will be credited first to any service charge and then to any outstanding balances.

4.3.2     In the event that any portion of an account remains unpaid 30 days after billing, the SE may, without waiving any claim or right against the Client, and without liability whatsoever to the Client, suspend or terminate the performance of all services and in that event, SE will in no way be responsible for any resultant delay.

Section 5 - Insurance, Indemnification & Risk Allocation

5.1       Insurance

5.1.1     The Client shall secure professional liability insurance, commercial general liability insurance, and automobile liability insurance to protect the Client from claims for negligence, bodily injury, death or property damage which may arise out of the negligent performance of the Client's Services under this Agreement. The Client shall maintain professional liability insurance for a minimum of three years after substantial completion of the project provided such insurance is commercially available and reasonably affordable. The Client shall also carry worker’s compensation insurance. The Client shall provide certificates of insurance to the SE.

5.1.2     The SE shall secure professional liability insurance, commercial general liability insurance, and automobile liability insurance to protect the SE from claims for negligence, bodily injury, death or property damage which may arise out of the negligent performance of the SE’s Services under this Agreement. The SE shall maintain professional liability insurance for a minimum of three years after substantial completion of the project provided such insurance is commercially available and reasonably affordable. The SE shall also carry worker’s compensation insurance. The SE shall, if requested in writing, provide certificates of insurance to the Client.

5.2       Indemnification

5.2.1     The SE shall indemnify and hold harmless the Client and its officers, members, directors, partners, employees, and subconsultants against any and all claims, damages, losses and expenses to the extent they are caused by the negligent acts, errors, or omissions of the SE or its employees in the performance of its services under this Agreement, subject to the Risk Allocation provisions in Art. 5.3 below.

5.2.2     The Client shall indemnify and hold harmless the SE and its officers, members, directors, partners, , employees, and subconsultants from and against any and all claims, damages, losses and expenses arising out of or resulting from Client's performance of its obligations under this Agreement, provided that any such claims, damage, loss or expense is caused in whole or in part by the negligent act or omission and/or strict liability of the Client, anyone directly or indirectly employed by the Client (except the SE) or anyone for whose acts any of them may be liable and provided that they are not caused by the negligent performance by the SE of services under the agreement. This indemnification shall include any claim, damage or loss due to the presence of hazardous materials.

5.2.3     Neither party shall have any obligation to defend or pay for the defense costs of the other party unless such costs are recoverable under applicable law.

5.2.4     For third party claims, to the fullest extent permitted by law, the Client hereby agrees to indemnify, hold harmless and defend the SE, including its officers, members, directors, partners, agents, employees, and subconsultants from and against all third party claims, including bodily injury, property damage, products liability, demands, damages and losses, causes of actions, judgments, fines, penalties and claims expense including attorney fees, litigation costs, expert witness fees and any other expenses  caused or alleged to have been caused by anything other than negligent performance by the SE of services under the agreement related to this project. Said indemnification shall also apply to any deductible that the SE may be obligated to pay under its Professional Liability Policy resulting therefrom.

5.2.5     The Client shall require that its construction contractor(s) endorse commercial general liability coverage to include the Client, the SE and the SE’s consultants as additional insureds for claims caused in whole or in part by the contractor’s negligent acts or omissions during the contractor’s operations. All such additional insured coverage shall be primary and non-contributory, with provision for separation of insureds. 

5.3       Risk Allocation

5.3.1     In recognition of the relative risks, rewards and benefits of the Project to both the Client and the SE, the risks have been allocated such that the Client agrees that, to the fullest extent permitted by law, the SE’s total liability to the Client or any third party for any and all injuries, claims, losses, expenses, damages, expert fees, court costs or claim expenses arising out of this Agreement, from any cause or causes, inclusive of all costs including attorney and expert fees, shall not exceed the amount of $25,000 or the amount of the SE’s fees, whichever is greater. Such causes include, but are not limited to, the SE’s negligent acts, errors, omissions, strict liability, breach of contract, breach of expressed or implied warranty, or any other theory of legal liability. This limitation of liability shall apply to the SE and its officers, members, directors, partners, agents, employees, and subconsultants. Client understands that SE's fee is based, in part, on Client's agreement to limit SE's liability in accordance with this paragraph and that greater limits of liability are available for increased SE fees, but that Client has agreed to forego those greater limits of liability in exchange for the SE fee herein.

5.4       Waiver of Consequential Damages

5.4.1     To the fullest extent permitted by law, and notwithstanding any other provision in the agreement, the SE and SE's officers, directors, members, partners, agents, consultants, and employees shall not be liable to Client or anyone claiming by, through, or under Client and Client waives any and all claims for or entitlement to special, incidental, indirect, consequential, or punitive damages from SE arising out of, resulting from, or in any way related to this agreement or the project.

Section 6 - Miscellaneous Provisions



6.1       Ownership and Use of Documents

6.1.1     All documents, drawings, specifications, electronic files, building computer models, design calculations and survey notes ("documents") are instruments of service intended for the one-time use in connection with this Project. They belong to and remain the property of SE, regardless of whether the instruments were copyrighted or whether the Project for which they were prepared is executed. The SE retains all copyright interests and rights in all such documents. The Client may, at its expense, obtain reproducible copies of drawings and copies of other documents, in consideration of which there will be mutual agreement that the Client will use them solely in connection with the specific Project for which they were prepared.

6.1.2     Any reuse or modification of the documents for any purpose, including development of another project, or completion of this project by others, shall constitute an unauthorized reuse and is prohibited unless performed by or at the written consent of the SE. The Client further agrees to defend, indemnify and hold the SE harmless from and against any and all claims, demands, damages, losses or expenses, including court and arbitration costs, and attorneys’ fees, arising out of or resulting from any such unauthorized reuse.

6.1.3     Building computer models or other electronic files shall not be used by the Contractor for the preparation of shop drawings without the written consent of the Structural Engineer and such fee that the Structural Engineer may establish.

6.2       Opinion of Probable Construction Cost

6.2.1     The SE's opinion of probable structural construction cost, if rendered as a service under this Agreement, is based on assumed labor costs and approximate quantities of material and equipment, and therefore is of a conditional character. The SE cannot guarantee the cost of work to be performed by others since market or bidding conditions can change at any time and changes in the scope or quality of the Project may affect estimates.

6.3       Hidden Conditions and Hazardous Materials

6.3.1     A structural condition is hidden if it is concealed by existing finishes or if it cannot be investigated by reasonable visual observation. If the SE has reason to believe that a structurally deficient condition may exist, the SE shall notify the Client who shall authorize and pay for all costs associated with the investigation of such a condition and, if necessary, all costs necessary to correct said condition. If (1) the Client fails to authorize such investigation or correction after due notification, or (2) the SE has no reason to believe that such a condition exists, the Client is responsible for all risks associated with this condition, and the SE shall not be responsible for the existing condition nor any resulting damages to persons or property. The SE shall have no responsibility for the discovery, presence, handling, removal, disposal or exposure of persons to hazardous materials of any form.

6.4       Review of Contractor’s Work

6.4.1     The SE will not supervise, direct, or have control over the Contractor’s work. The SE shall not be responsible for the Contractor’s means, methods, procedures, techniques, or sequences of construction, nor for safety programs or procedures employed by the Contractor on the job site. The SE shall not be responsible for the Contractor’s failure to carry out work in accordance with the Contract Documents.

6.5       Termination, Successors and Assigns, Third Party Beneficiaries

6.5.1     This Agreement may be terminated upon 14 days written notice by either party should the other fail to perform its obligations hereunder. In the event of termination, the Client shall pay the SE for all services rendered to the date of termination, all reimbursable expenses, and reasonable termination expenses.

6.5.2     The parties each bind themselves, their partners, successors, executors, administrators, assigns and legal representatives to the other party of this Agreement and to the partners, successors, executors, administrators, assigns, and legal representatives of such other party in respect to all covenants, agreements, and obligations of this Agreement.

6.5.3     Neither party shall assign, sublet or transfer any rights under or interest in (including but without limitations, monies that may be due or monies that are due) this Agreement, without the written consent of the other, except as stated in the paragraph above, and except to the extent that the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent either party from employing such independent consultants, associates and subcontractors as deemed appropriate to assist in the performance of services hereunder.

6.5.4     The parties agree that the services performed pursuant to this Agreement are solely for the benefit of the Client and are not intended by either party to benefit any other person or entity. To the extent that any other person or entity, is benefited by the services performed pursuant to this Agreement, such benefit is purely incidental and such other person or entity shall not be deemed a third-party beneficiary to this Agreement.

6.6       Dispute Resolution

6.6.1     The parties agree to negotiate any claim or dispute arising out of or related to the agreement between them in good faith prior to exercising any other provision of this Agreement. If a claim or dispute between the parties cannot be settled within 30 days by good faith negotiations the parties agree to submit it to mediation in accordance with the Construction Rules of the American Arbitration Association. If the claim or dispute cannot be settled by good faith negotiations or mediation, then either party may exercise their rights under law. In no event shall a claim or dispute be made or sustained if it would be barred by the applicable statute of limitations.

6.7       Governing Laws

6.7.1     This Agreement shall be governed by the laws of the principal place of business of the SE.

6.8       Electronic Document Provisions

6.8.1     Client and SE may transmit, and shall accept, project-related correspondence, documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly, or through access to a secure project website, in accordance with a mutually agreeable protocol.

6.8.2     If this Agreement does not establish protocols for electronic or digital transmittals, then Client and SE shall jointly develop such protocols.

6.8.3     Original electronic document files will be retained by SE for a period of time determined by SE. Client may be permitted to retain copies of drawings and specifications prepared on electronic document files form for Client's information in its use of the project. Due to the potential that the information set forth in the electronic document files can be modified by Client, unintentionally or otherwise, SE reserves the right to remove all indicia of its ownership and/or involvement from each electronic display.

6.8.4     SE's electronic document files are compatible with the current release of SE's software, using SE's current operating system.

6.8.5     Data stored on electronic media can deteriorate undetected or be modified without SE's knowledge. Therefore, Client agrees that it will accept responsibility for the completeness, correctness, and readability of the electronic media after an acceptance period of 7 days after delivery of the electronic files. Client also agrees that upon the expiration of this acceptance period, Client will indemnify and hold harmless SE for any and all claims, losses, costs, damages, awards or judgments arising from the use of electronic media files or output generated from them.

6.8.6     In the event that a conflict arises between the signed/certified documents prepared by SE and electronic document files, the signed/certified documents shall govern.

6.8.7     Electronic document files will be prepared by SE and delivered to Client in accordance with SE's standard electronic document specification. All costs associated with providing electronic document files to comply with Client's electronic document specification are considered Additional Services and may require the extension of the project design phase schedule.

6.8.8     Information set forth in the electronic document files will not be used by the Client on other projects, for additions to this project, or for completion of this project by another design professional. Any such use or reuse by Client or others, without written verification or adaptation by SE for the specific purpose intended, will be at Client's sole risk and without liability or legal exposure to SE. Furthermore, Client shall, to the fullest extent permitted by law, indemnify and hold harmless SE from all claims, damages, losses and expenses, including attorneys' fees, arising out of or resulting therefrom. Any such verification or adaptation will entitle SE to further compensation at rates to be mutually agreed upon by Client and SE.

6.9       Corporate Protection

6.9.1     It is intended by the parties to this agreement that the SE’s services in connection with the project(s) shall not subject the SE’s individual owners, officers or employees to any legal exposure for the risks associated with this project. Therefore, and notwithstanding anything to the contrary contained herein, the client agrees that as the client’s sole and exclusive remedy, any claim, demand or suit shall be directed and/or asserted only against the SE, and not against any of SE's individual owners, officers or employees.

6.10    Jobsite Safety

6.10.1  The Client acknowledges that the SE does not have any authority or responsibility for general jobsite safety and for the safety of persons who are not the employees of the SE or SE’s subconsultant(s). It is understood and agreed that the SE will not be responsible for the job safety or site safety of the project and shall not be responsible for compliance with safety programs and related OSHA regulations required to be followed by the Contractor or its employees, Subcontractors, and agents. Jobsite safety shall be the sole responsibility of the Contractor or Client.

6.11    Waiver of Certifications

6.11.1  No party to this Agreement shall be required to execute certificates or consents that would require knowledge, services or responsibilities beyond the scope of this Agreement. No party to this Agreement shall be required to sign any documents which would result in that party having to certify, guarantee, or warrant the existence of conditions which they cannot ascertain.

6.12    Severability

6.12.1  Any term or provision of this agreement found to be invalid under any applicable statute or rule of law shall be deemed omitted and the remainder of this agreement shall remain in full force and effect.

6.13    Claim Validation

6.13.1  The Client shall make no claim for professional negligence, either directly or by way of a cross complaint against the SE unless the Client has first provided the SE with a written certification executed by an independent consultant currently practicing in the same discipline as the SE and licensed in the state where the project is located. This certification shall: a) contain the name and license number of the certifier; b) specify the acts or omissions that the certifier contends are not in conformance with the standard of care for a consultant performing professional services under similar circumstances; and c) state in detail the basis for the certifier's opinion that such acts or omissions do not conform to the standard of care. This certificate shall be an express condition precedent to initiation of any claim by mediation, arbitration or litigation and shall be provided to the SE not less than thirty (30) calendar days prior to the presentation of any claim or the institution of any arbitration or judicial proceeding. Failure to comply with this Art. 6.13.1 shall constitute a waiver of any such claims.